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United States v. Carey

United States District Court, S.D. California

March 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL CAREY (1), Defendant.

          ORDER

          WILLIAM Q. HAYES United States District Judge

         The matter before the Court is the motion for discovery and disclosures filed by the Defendant. (ECF No. 300).

         On October 4, 2016, the Court of Appeals for the Ninth Circuit vacated this court's order denying Defendant's motion to suppress evidence obtained from wiretaps and remanded “on an open record to determine what evidence was lawfully obtained in ‘plain hearing.'” United States v. Carey, 836 F.3d 1092, 1094 (9th Cir. 2016). The Court of Appeals stated:

[B]ecause the order did not authorize agents to listen to Carey or his associates, the government may only use evidence obtained in accordance with the “plain hearing” doctrine discussed above.
The record does not indicate what evidence was obtained before the agents knew or should have known that they were listening to calls outside of the Escamilla conspiracy.

Id. at 1098. On remand, the court will hold a further hearing to determine whether the FBI agents knew or reasonably should have known that it was intercepting a conspiracy outside of the Escamilla conspiracy on T-14 during the period March 10, 2010 to March 17, 2010. Defendant is entitled to “reasonable discovery relating to this [] purpose.” United States v. Soto-Zuniga, 837 F.3d 992, 1002 (9th Cir. 2016).

         On February 6, 2017, Defendant filed a motion requesting 30 specific disclosures and discovery requests. (ECF No. 300-1 at 28-52). The Government does not oppose the following requests: 1, 2, 3, 4, 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 19, 21, 23, 25, and 26. (ECF No. 304 at 2-3). These requests are granted. The Court further orders as follows:

         Discovery Request 5: Cross agency communications This request is granted as to any communications during the period March 10, 2010 to March 17, 2010 not protected by Rule 16(a)(2) or not otherwise subject to a claim of privilege by the Government. The Government shall provide a privilege log for any documents not turned over based upon a claim of privilege.

         Discovery Request 10: Cooperator Information regarding the Carey conspiracy Carey requests any materials concerning persons who provided information about the Carey conspiracy, and specifically, debriefs with confidential informants interviewed on June 11, 2009, November 20, 2009, December 17, 2009 and information obtained from interviews from unindicted co-conspirators. The Government has previously disclosed “all reports documenting CI info re Carey.” (ECF No. 288 at 10). The Government contends that this request should be denied on the grounds that the hearing on remand is limited to the FBI's knowledge during the wiretap on T-14.

         The Court finds that Defendant has failed to identify any connection between any further disclosure of confidential informant information and the issues presented in the remand. This request is denied with leave to renew upon further showing of good cause.

         Discovery Request 11: Communications between prosecutors and agents Carey requests any materials detailing communications between the prosecutors and agents concerning the Carey conspiracy. The Government contends that this request is overbroad and not limited to communications relevant to the question on remand.

         This request is granted as to any communications during the period March 10, 2010 to March 17, 2010 not protected by Rule 16(a)(2) or not otherwise subject to a claim of privilege by the Government. The Government shall provide to the court under seal any documents not turned over based upon a claim of privilege.

         Discovery Request 18: All discovery concerning the Escamilla conspiracy Defendant requests “all recorded conversations, electronic, mechanical, stenographic, or otherwise, of any defendant or any other person, whether or not acting on behalf of any Government, which is relevant to the subject matter charged in the complaint in this case. . . [Defendant] requests all reports or investigative material of the Escamilla conspiracy in order to ‘contradict' the contents of Agent Melzer's Declaration.” The Government does not oppose the disclosure of reports of the Escamilla investigation during the period March 10, 2010 to March 17, 2010.

         This request is granted as to all reports pertaining to Ignacio Escamilla-Estrada, all communications and surveillance, all surveillance activities of Ignacio Escamilla-Estrada during the period March 10, 2010 to March 17, 2010, and all information concerning how the agents knew that Ignacio Escamilla-Estrada was no longer using T-14. This request ...


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